Monday
September 10, 2012
September 10, 2012
News
By MURITHI MUTIGA mmutiga@ke.nationmedia.com
Posted Saturday, September 8 2012 at 23:30
Posted Saturday, September 8 2012 at 23:30
In Summary
- Case expected to shine a light on the shadowy – and highly profitable – world of slum landlords
- The matter is expected to come before the courts on Wednesday, exactly one year after the Sinai fire tragedy that claimed 119 lives
- The plaintiffs will be ranged against a second layer of slum tycoons, the people who erect the actual shacks and charge rent from occupants on the land in question
- With rents ranging between Sh1,500 to Sh3,000, the monthly income for these shack landlords is huge
One of the most significant court battles since the
new Constitution was adopted begins in Nairobi this week when a
coalition of campaigners moves to cancel dozens of dubious title deeds
in the slums held by powerful and wealthy individuals.
The campaigners will seek to assert the rights of
hundreds of thousands of residents to the land on which they live in a
move that could transform the city’s land tenure system and represent
the biggest step yet towards upgrading the city’s informal settlements.
The case is expected to shine a light on the
shadowy – and highly profitable – world of slum landlords and expose the
political opportunism that saw successive governments hand titles to
well-connected individuals at the expense of Nairobi’s estimated 2.65
million slum dwellers.
The matter is expected to come before the courts on
Wednesday, exactly one year after the Sinai fire tragedy that claimed
119 lives and illuminated to Kenyans and the world the shocking
conditions under which a majority of urban residents live. (Read: Sinai fire victims sue for damages)
“Take it from me, this will be explosive,” says Senior Counsel Paul Muite.
The case has been brought by Muungano wa
Wanavijiji, a coalition of NGOs that has been campaigning for the rights
of the invisible majority of Nairobi’s residents who live in crowded
shacks on the fringes of the city, daily facing the threat of eviction
without notice.
Former Kituo Cha Sheria executive director Jane
Weru, who is now a director at Muungano wa Wanavijiji and has been
advocating the rights of slum dwellers since the early 1990s when a wave
of land-grabbing saw the eviction of thousands, is confident about the
group’s prospects.
“This is a good case. We will be raising the
question of the right to housing and sanitation which is enshrined in
the Constitution. We will also be querying the process followed in
making these land allocations,” she said.
“The law under the old constitution was clear that
if land was to be allotted to an individual, it should have been sold by
public auction. In many of these cases, the parcels were simply dished
out to cronies of the powers-that-be. The land was issued for the
establishment of light industries. None of these were built on the
parcels in question and the Commissioner of Lands was supposed to have
recalled the titles. That should happen now.”
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Besides these remedies, the coalition, which is represented
by Prof Yash Pal Ghai’s Katiba Institute through lawyer Korir Sing’oei,
will ask the National Land Commission to investigate the process through
which the questionable titles were handed out with a view to their
cancellation and the possible prosecution of the culprits.
Nairobi has one of the most acute urban housing
crises in the world. Sixty-five per cent of the city’s population live
in slums, which occupy only five per cent of the capital’s land mass,
according to UN-Habitat.
The crowding and poor sanitation levels are unlike
anything witnessed around the world. In Nairobi, about 318 households or
about 1,177 people on average, occupy one acre in the slums, compared
to two households per acre in the upmarket Runda estate or one per acre
in Muthaiga.
By contrast, only 78 households live on one acre in the Kisenyi slum of the Ugandan capital Kampala.
The Kenyan capital’s slums are even more congested
than some of the world’s most notorious slums such as Dhaka in
Bangladesh, whose informal settlements house about 891 people per acre.
Experts warn that the failure of planning, which
has resulted in Nairobi’s massive urban housing crisis, is a ticking
time bomb that could sow instability.
“The difference between Kenya and other governments
in the region is that neighbouring countries allocate land to cater for
housing of the poor,” says Peter Ngau, a professor of urban and
regional planning at the University of Nairobi.
“From the 1980s to the 1990s, there was no housing
project aimed at the poor in the country. The recent National Housing
Corporation scandal, where houses meant for the middle class were
allocated to top government officials, illustrates the problem. Agencies
such as the NHC should be spearheading construction programmes for the
poor,” Prof Ngau said.
“Expansion plans of facilities such as the airport
should take into account how to relocate the poor. There should be no
development of industries without that going hand-in-hand with housing
development near those industrial parks. It is vital that we take a
systematic approach.”
The Constitution endorsed in August 2010 explicitly assures
citizens of the right to housing. The text is taken almost word for word
from the Bill of Rights of the South African constitution.
Article 43(1a, b) states: “Every person has the
right to the highest attainable standard of health, which includes the
right to health care services, including reproductive health care [and]
to accessible and adequate housing, and to reasonable standards of
sanitation.”
The Bill of Rights in South Africa has helped the
poor win access to health care for common diseases, and in the landmark
government of the Republic of South Africa and Others vs Grootboom and
Others case, slum dwellers successfully argued that even when they were
being evicted from private land, the state had a constitutional
obligation to resettle them.
The court further held that the state was obliged
to take positive action to meet the needs of those living in extreme
conditions of poverty, homelessness or intolerable housing by providing
services such as the provision of water and the removal of sewage.
The petitioners in the Kenya case will be asking for more than those in the South African civil suit.
The contention of the rights campaigners is that the slum dwellers should not be evicted at all because the purported owners of the land on which they sit hold illegal titles.
The contention of the rights campaigners is that the slum dwellers should not be evicted at all because the purported owners of the land on which they sit hold illegal titles.
Lined up on the opposite side will be some powerful
politicians and businessmen who benefited from the land allotments,
setting the stage for a titanic battle.
A review of the paperwork from the Lands ministry
shows how the process of irregular allocations of land, which was
conducted on a low scale from 1972, intensified from the late ‘80s and
hit a peak between 1991 and 1995.
Well-connected politicians and businessmen
approached the Commissioner of Lands after establishing that the areas
occupied by slum dwellers did not have any registered title owners. They
were then issued with titles to the land.
But a provision of the Registration of Titles Act
(Chapter 281) required them under the “special conditions of the grant”
of title to develop the land within a fixed period.
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It states that the land shall “only be used for light
industrial purposes” and requires that the grantee submits “within six
calendar months [detailed plans for buildings and drainage system] and
shall within 24 months of the actual registration of the grant complete
the erection of such buildings and the construction of the drainage
system in conformity with such plans .…”
Most of the recipients of the land did not make any developments on it and certainly did not establish any industries.
Despite the law forbidding them from subdividing, selling or charging the land to banks, documents seen by the Sunday Nation indicate that these slum landlords secured loans running into billions of shillings from the parcels on which slums sit.
All these irregularities will form part of the arguments by the coalition’s lawyers calling for cancellation of the titles.
“We will be questioning not just the actions of the
public sector but also will ask questions of banks which used
depositors’ money to lend to these people on the strength of titles of
land which was clearly occupied by other people,” Ms Weru said.
The plaintiffs will be ranged against a second
layer of slum tycoons, the people who erect the actual shacks and charge
rent from occupants on the land in question.
This group, which operates with the assistance of
the provincial administration, has amassed fabulous wealth by providing
the most basic housing facilities with no accompanying services like
sewage and water.
It is a multi-billion shilling business, with rents
ranging between Sh1,500 to Sh3,000, and because of the massive crowding
and huge numbers of houses per acre, the monthly income for these shack
landlords is huge.
In a 2003 UN-Habitat report, Rental Housing: An
essential option for the urban poor in developing countries, researchers
concluded that the urban poor in Kenya are among the world’s most
exploited.
“In Mexico, landlords in self-help settlements certainly did not
make much money in the 1980s and it does not seem as if the situation
is very different in South Africa. Ownership of property in inner
Johannesburg was certainly unprofitable for all except the most
exploitative landlords. And, few landlords renting out backyard
accommodation are going to get very rich because the average rent in
places like Soweto is extremely low.”
The situation in Nairobi is different, they said:
“A major exception is represented by the slums of Nairobi where it is
argued that renting out unauthorised housing is extremely lucrative.
Annual capital returns on one 10-room structure were as high as 131 per
cent, implying that the cost of building a room for rental purposes can
be recuperated in nine months.”
The money is shared out with government officials, an expense the report labels “high transaction costs”.
“Each time new construction or improvements to
existing structures are being carried out, the local administrator in
charge of allocation, usually the chief of the area, must receive
payment, otherwise the construction or improvements will not be
sanctioned. But, nonetheless, these are spectacularly high profit rates,
achieved only by supplying appallingly poor shelter on land for which
they have paid very little (if anything at all) and tolerated only
because powerful public officials and politicians are among the
principal landlords.
“Many landlords in Nairobi are in fact capitalising
on substantial government subsidies, in the form of free public land.
The high profit rates enjoyed by landlords indicate that only a minor
part of these subsidies, if anything at all, trickles down to the
tenants.”
For the 40 years in which slums have been a fixture
of the urban landscape, slum dwellers have largely been an invisible
group. They commanded attention briefly when major fighting broke out
following the last elections. They have quietly borne the hardships and
privations of life in the squalor of the fringes of more developed areas
for decades.
On Wednesday, that will change when they are
expected to throng the courts to present a landmark civil suit which
will provide a fascinating test for Chief Justice Willy Mutunga’s
reforming Judiciary.
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